Hearing Tests Expert and possible cue

[GeekySquid]

Okay, so I got the CDROM with my C-file this week, and I already knew that there were problems with my C&P for bilateral hearing loss conducted in 2013 but needed the C-file to do anything. I found out about the error in 2017 when a paper copy of my c-file showed up out of nowhere after more than a dozen statements from the VA, St.Louis Rec Mgmt, and the Navy saying no one could find my records.

When the C&P happened I was never mailed a letter with the results and that justifications. I did receive my rating later for 70% PTSD 10 % Tinnitus as being SC. My American Legion rep said the bilateral hearing loss claim was denied. I took his word for it and went on about my business.

The paper copy of the c-file arrived and besides a cursory look I did not dig much into it. One day I did some more looking and found the C&P  and it clearly stated that the examining Doctor only looked at the hearing tests for my induction and end of my FIRST enlistment. She completely ignored my second enlistment and even called the second enlistment a separation instead of a reenlistment.

I did not deal with it at that time because I was doing a hundred things and then I moved up to Seattle and put that box in storage back in New Orleans while I decide if I can last the winters here.

I have found several distinct problems w/ my c-file and her determination reasoning and what I want to find out is if these readings mean anything but more importantly if this is properly submitted as a CUE? The lack of service connection for the left ear will make getting hearing aids a problem later in life and frankly I say 'huh' a lot as it is.

1) she only looked at one enlistment

2) she stated that "...an OSHA-defined STS during military service CANNOT be established from this audiometric data." Yet in the file is that very document but from my second enlistment period.

3) Including the C&P there are 6 hearing tests in the file. There should be at least 4 more, as my job required an OSHA hearing test every two years, these are mandated tests and do not substitute for reenlistment and discharge hearing tests.

4) The one OSHA test in my c-file is marked in writing as "an OSHA-defined STS during military service CANNOT be established from this audiometric data." This file says it occurred 3 days after another OSHA test which shows a 20 DB loss in my left ear at reenlistment but none of the intervening tests are in the file. This one "reset the baseline" to 0 for the 4000Hz frequency. I Don't understand this and do not remember ever taking back to back hearing tests or being told to sit in a quiet place for 3 days before being retested.

5) The final in-service test is off the charts compared to my other tests. I have 70's and 75's in my right ear and 30's in my left. My AVG for the right ear is a 37.5HL.

6) the C&P says there is loss but not enough to be rateable. which is fine but it also says the loss is not service connected. which is flat out wrong.

7) For the right ear she lists an IDC 9 code of 389.11 which is for BILATERAL Hearing Loss, but says there is no loss in the Left ear.

sorry about the huge table, but it shows the readings for every test in my c-file. The one in blue is the OSHA baseline reset test and the numbers in red are the noted 20 db difference the triggered the supposed reset of the baseline.

any CUE help would be appreciated. I think it is one but I am not sure.

 

Induction	250	500	1000	2000	3000	4000	6000	8000	Avg not including 500
right	na	10	5	20	0	0	5	na	(30/5) = 6
left	na	15	10	0	0	5	15	na	(30/5) = 6
Re-up	250	500	1000	2000	3000	4000	6000	8000	Avg not including 500
right	na	30	10	5	5	5	10	na	(35/6) = 5.8
left	na	15	10	5	0	20	5	na	(40/6) = 6.66
osha 87	250	500	1000	2000	3000	4000	6000	8000	Avg not including 500
Right	na	10	5	0	0	10	-5	na	(15/6) = 2.5
Left	na	5	5	5	5	0	5	na	(20/6) = 3.33
osha 87 3 days later	250	500	1000	2000	3000	4000	6000	8000	Avg not including 500
right	na	10	5	10	-5	0	5	na	(15/6) = 2.5
left	na	15	5	5	5	0	10	na	(25/6) = 4.16
Discharge	250	500	1000	2000	3000	4000	6000	8000	Avg not including 500
Right	na	5	70	30	25	20	75	na	(225/6) = 37.5
left	na	10	5	10	5	0	30	na	(57/6) = 9.5
C&P	250	500	1000	2000	3000	4000	6000	8000	Avg listed in C&P
right	na	30	20	15	15	40	25	20	22
left	na	20	10	15	15	15	20	10	14

 

 

[GeekySquid]

3 hours ago, broncovet said:

A Veterans dispute of what the C and P examiner stated isnt CUE, even if its inaccurate.

@broncovet,

Thank you that was the distinction I was trying to understand.

I have another question and will address your other responses here.

The other question is that the "error" is the C&P doctors error. The administrative errors of not having some of the files in my c-file isn't part of her error. All the readings in my table are and were in the files when she examined me.

Put another way she only looked at my induction test and the test I took to re-up but she classifies as my separation physical.

Her opinion also explicitly states there is no "OSHA STS recorded" but my records show the OSHA STS and that they "reset" my baseline. But the C&P apparently did not look at that or see it

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3 hours ago, broncovet said:

Im not sure why, but your hearing tests are inconsistent.

neither am I and with the other hearing tests missing I cannot began to fathom the changes. I will be trying to have them find those files. They should be Memphis, Pensacola, NAS Jax, NAF Sigonella, and NAS Jax again. There might be one from PAX River but I cannot remember if I got it there or just before I went there.

I will have to look at the in service tests i have, I know one says Maryland CNC and all have an ansi number on them.

The issue of speech discrimination  is that it is not listed in the C&P anywhere and I have gone over every page a couple times and electronically search the pages. I also don't remember taking one but that could be because I was strongly medicated during that test.

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3 hours ago, broncovet said:

loss service connected with all 3 Caluza elements. 

I have the nexus, actually multiple. The C&P even states one of them as being my job.

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2 hours ago, broncovet said:

exposure to  jet engine noise

yep airdale here. got shot down, twice. lots of noise. lots of explosions. lots of actually hearing tests not in my record. nexus for lots of my problems.

considering much of my record is still classified that may be where those tests are hidden.

=---------------next-------

My concern is the actual SC even at a 0%. She gave me an IDC9 code for Bilateral Hearing Loss for my right ear but nothing for the left. how that is bilateral I don't know. There are IDC-9 codes for loss in just one ear.

Age will make this worse and since I am in fighting mode I want to clean this up now instead of waiting any longer.

---------------last------------

as I said the errors the C&P made include that she only looked at my first four years. She did not even acknowledge that I was in service for a subsequent enlistment of 6 years.  She did not see that last hearing test and did not acknowledge that the very thing she complained about, and OSHA STS, was right there in the file.

That is why I thought CUE.

At this point it seems that the most realistic options are to have a private ENT look at me and test me to give an opinion about SC and then request another C&P to address the short comings. Hopefully I can also get the missing files too.

Thanks for your input. It was helpful.

 

[Buck52]

ok If you were denied, you can file a Notice of Disagreement  (NOD) Request a DRO Hearing at your R.O and request a Rating Specialist be present at your hearing, ....Take all your old test that show your hearing test.All C&P Reports...it would be a good Ideal to go get a IMO from a private Dr as I mention above  you can submit this as new evidence and or take it with you to the Hearing..you sit down with the DRO and the Rating Specialist, the rating specialist can read the Hearing chats and decide the level f your hearing and the DRO will and should approve you right then   they have the Authority to rate you & some times the DRO MAY NEED MORE TIME TO MAKE A DECISON but when you have the clear evidence   they usually rated it.

No CUE would apply to this because with a CUE  it has to be undetectable that your case would be of error and since the DRO Could decide   then just for this reason  AND there are other reasons to why this would not be CUE as broncovet mention

here is a good read about what constitute CUE  You can just scroll over and read the parts that pertain to your question.

(1) Claim must be a "closed claim" also known as a "final decision" for a CUE review.  The finald decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed, and

(2) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and

(3) the error is "undebatable;" and

(4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

 CUE Undebatable:

Further, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated."  Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  The error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered.  Id. at 313-14, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell).  A mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE claim.  Damrel v. Brown, 6 Vet. App. 242, 246 (1994). 

CUE WARNING:

A veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds that the claim does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney.

Errors that cannot constitute CUE, pursuant to 38 C.F.R. sections 20.1403(d) and (e), include:

(1)   a changed diagnosis, where a "new medical diagnosis . . . 'corrects' an earlier diagnosis considered in a Board decision;"

(2)   VA's failure to comply with the duty to assist;

(3)   a "disagreement as to how the facts were weighed;" and

(4)   a subsequent change in interpretation of the statute or regulation that was applied in the Board decision.

Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005); cf. Cook, 318 F.3d at 1346 ("The requirements that [CUE] be outcome determinative and be based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim."); see also MacKlem v. Shinseki, 24 Vet. App. 63 (2010); Damrel, 6 Vet. App. at 246; Fugo, 6 Vet. App. at 43-44.

When the Court reviews a Board determination that there was no CUE in a prior final decision, the Court's review is generally limited to determining whether the Board's conclusion is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 38 U.S.C. § 7261(a)(3)(A), and whether it is supported by adequate reasons or bases.  38 U.S.C. § 7104(d)(1); Joyce v. Nicholson, 19 Vet. App. 36, 43-44 (2005); Lane v. Principi, 16 Vet. App. 78, 83-84 (2002), aff'd, 339 F.3d 1331 (Fed. Cir. 2003); Eddy v. Brown, 9 Vet. App. 52, 57 (1996); Archer v. Principi, 3 Vet. App. 433, 437 (1992); Russell v. Principi, 3 Vet. App. 310, 315 (1992). However, whether the claimant has presented a valid CUE allegation and whether an applicable law or regulation was not applied are questions of law that are reviewed de novo.  Joyce, 19 Vet. App. at 43; see also Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004).

The U.S. Court of Appeals for the Federal Circuit has held that "a veteran's assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim."  Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  Because the "Federal Circuit equates 'issue' with a 'claim' and not a theory or element of the claim," "an appellant has only one opportunity to raise any allegation of clear and unmistakable error for each claim decided in a Board decision and any subsequent attempt to raise a clear and unmistakable error challenge to the same claim contained in a Board decision will be dismissed with prejudice."  Hillyard v. Shinseki, 24 Vet. App. 343, 354 (2011); 38 C.F.R. § 20.1409(c).  A claimant, thus, has only one chance to file a CUE claim on a prior decision.  Id.

Although CUE does not require "pleading with exactitude," it nevertheless must be plead with "some degree of specificity."  Jordan v. Principi, 17 Vet. App. 261, 270-71 (2003) (finding that although "the liberal construction of a VA claimant's pleading must be tempered somewhat in CUE cases" that "does not require pleading with exactitude"); Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  Assertions of CUE raised by counsel, however, are not entitled to a liberal reading.  See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (distinguishing between filings by counsel in direct appeals to the Board and assertions of CUE, and holding that filings in direct appeals to the Board must be read liberally, whether filed by counsel or claimant).  Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); MODEL RULES OF PROF'L CONDUCT R. 1.1 (Competence), 1.3 (Diligence); U.S. VET. APP. R. ADM. & PRAC. 4(a) (adopting the Model Rules of Professional Conduct as disciplinary standard for practice).  Perfection of an appeal for a claim involving CUE involves the same steps as any other claim.  38 U.S.C. § 5109A(e) ("[CUE claims] shall be submitted to the Secretary and shall be decided in the same manner as any other claim."); see Andre, 301 F.3d at 1361 (Fed. Cir. 2002) (holding that "each 'specific' assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the Veterans Court can exercise jurisdiction over it"). 

The VCAA does not apply to CUE actions.  See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims).  In other words, the VA has no duty to assist claimants with CUE claims.  See Livesay, 15 Vet. App at 178 (noting that the CUE "movant bears the burden of presenting . . . specific allegations of error"); 38 C.F.R. § 20.1404 ("The motion must set forth clearly and specifically the . . . errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error."); see also Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005) (noting that the duty to read pro se filings sympathetically applies to CUE motions); Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (whether a sympathetic reading of a veteran's filing raises a valid claim is a factual inquiry, reviewed under the "clearly erroneous" standard).

The spouse of a deceased claimant has no right to file a CUE claim because "a survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE" as 38 U.S.C. section 5109A does not "provide[] for another person, even a survivor, to seek correction of a decision on a veteran's claim."  Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998).

Reference: 38 C.F.R. 20.1403

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

 (a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

 (b) Record to be reviewed

 (1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

 (2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.

 (c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.

 (d) Examples of situations that are not clear and unmistakable error

 (1) Changed diagnosis. A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision.

 (2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

 (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

 (e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.

(Authority: 38 U.S.C. 501(a), 7111)

[GeekySquid]

14 minutes ago, Buck52 said:

If you were denied, you can file a Notice of Disagreement  (NOD) Request a DRO Hearing at your R.O

@Buck52

thanks for responding.

The C&P was in 2013 and it was not until 2017 that I found out the C&P only looked at one enlistment. I believe a NOD is not possible on the existing decision, is that right?

18 minutes ago, Buck52 said:

here is a good read about what constitute CUE  You can just scroll over and read the parts that pertain to your question.

(1) Claim must be a "closed claim" also known as a "final decision" for a CUE review.  The finald decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed, and

(2) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and

(3) the error is "undebatable;" and

(4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

In my situation item 1 in the above list is satisfied. The RO closed it in 2013.

item 2 is questionable as the "Error" is, in one part, that she did not look at ALL the evidence that was in the file and part two that there is evidence that is not in the file. At this moment the VA is unaware that the other missing exams even exist. So until I tell them /find them, only part one is in play.

So does her NOT using existing evidence qualify for this Item?

Item 3 it is undebateable  in that in the C&P she explicitly states that A) I have a hearing Loss B) that she only looked at the two specific tests and no others, C) the loss is NOT SC based on her reading of only those two tests. 4) she assigned an IDC 9 code to my right ear for bilateral hearing loss but nothing for the left ear despite what my actual final exit exam shows. It is listed as

[X] Sensorineural hearing loss (in the frequency range of 500-4000 Hz) * ICD code: 389.11
.

In the section for Tinnitus however she sates my job and its loud noises are  the nexus for tinnitus. She does not mentions the other Nexus's (nexi?) in my record including the nexus for PTSD and the accompanying explosions, but they were in the file and were mentioned in our interview though I had not yet been rated for PTSD.

My contention is for service connection and no more (right now) but I know my hearing will get worse as I age.

So the change I am seeking would not specifically be about the diagnosis but about her statement that it is NOT Service Connection. Is that a correct way to understand the rules of the CUE process?

thanks for any input and the information

[GeekySquid]

On 10/6/2018 at 8:55 PM, GeekySquid said:

have found several distinct problems w/ my c-file and her determination reasoning

in reading through the VA determination explanation in the formal letter I found this

" Although right ear hearing loss is not shown in service, acoustic trauma or military noise
exposure may constitute injury of the ear. Medical expertise is needed to establish a link between
your current hearing loss and in-service military noise exposure. However, to this date, we have
received no medical records showing that your right ear hearing loss is due to service. You
have in-service acoustic trauma, but service connection for your left ear based on military noise
exposure alone cannot be granted. For service connection of the left ear to be considered there
must first be a s

Although right ear hearing loss is not shown in service, acoustic trauma or military noise
exposure may constitute injury of the ear. Medical expertise is needed to establish a link between
your current hearing loss and in-service military noise exposure. However, to this date, we have
received no medical records showing that your right ear hearing loss is due to service. You
have in-service acoustic trauma, but service connection for your left ear based on military noise
exposure alone cannot be granted. For service connection of the left ear to be considered there
must first be a showing of actual hearing loss in the left ear for VA purposes.

Your VA examiner opined that it is not at least as likely as not than not that your hearing loss is
due to military noise exposure. Your examiner provided the following rationale: Hearing was
within normal limits on enlistment and separation, and there is no evidence of an OSHA-defined
threshold shift during military service.

Your VA examiner opined that it is not at least as likely as not than not that your hearing loss is
due to military noise exposure. Your examiner provided the following rationale: Hearing was
within normal limits on enlistment and separation, and there is no evidence of an OSHA-defined
threshold shift during military service."

These items are all in those records in my c-file. At this point I have asked to re-open that claim and based on all I have heard so far on here, I suspect they will deny. If they do I will try a NOD on their denial to re-open, obviously if they re-open I won't have to NOD that action. If they deny SC after re-opening I will NOD that.

What I think sounds like the best NOD plan is to layout that the files exist in my c-file, they show in service harm and then lay out three possible scenarios about the data, hoping to lead them to decide it is "new and material"

I think something like this:

"As far as I can tell the C&P Doctor and the RO made their decision for one of several reasons. I am loath to put forth derogatory performance or skill as a reason, but that determination is not for me to make.

1) The specific hearing tests had not yet arrived from St. Louis, NAS Signonella,  NAS Jacksonville and/or NAS Cecil Field when the determination was made.

2) The RO and C&P doctor both elected to ignore the files in my records at that time, through intent or sloppiness.

3) The RO and C&P Doctor, though certified and employed to perform this type of evaluation lack(ed) the skills and knowledge to do so properly and with the full care and attention necessary to do the job correctly.

In the event the records were not in the c-file during this time, they become new and the test results not previously evaluated are most certainly material to determining service connection as they show in service loss."

I suspect wording like that will lead them to choose Item 1 with out explaining or proving their explanation to re-open. Most people will take a provided exit over blaming themselves.

who knows this may all be moot, the delay in getting a determination is because they are thoroughly reviewing the entire file and will re-open and grant service connection without me doing anything....and I fart rainbows every Tuesday.